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Transport Canada keeping secret details MM&A safety inspections

In five years preceding Canada’s worst rail disaster in Lac-Mégantic, Montreal, Maine & Atlantic received letters from Transport Canada raising concerns about the state of the rail companies’ locomotives, cars and rails — but the regulator won’t release the details.

MMA 5017, the locomotive leading the train in the Lac-Mégantic disaster, was inspected three months earlier, but information about any problems found has been censored in documents obtained by the Star. (Andre St-Amant / THE CANADIAN PRESS file photo)

Safety inspections of the rail company implicated in the Lac-Mégantic train disaster found defective equipment, problems with locomotives, and sections of rail lines so rundown trains could not exceed speeds of 10 miles per hour.

But Transport Canada is blocking the release of information detailing the majority of the problems and their severity, saying the inspection reports cannot be provided in full because the information is “third-party” — confidential, and belonging to the rail company — or was prepared or obtained in the course of an investigation.

Through access-to-information requests, the Star obtained a portion of the inspection reports on MM&A’s rails and locomotives conducted during the five years preceding the catastrophic derailment. It also received crew performance inspections and other general audits for January 2012 to July 2013.

During that time, Transport Canada repeatedly flagged safety concerns and non-compliance with rail standards by the now-defunct company — but the majority of the more than 1,000-page compilation of inspection documents was withheld or heavily censored.

Three months before the disaster, for instance, inspection documents show the regulator examined MMA 5017 — the locomotive leading the doomed 72-car train — but information about any problems found has been redacted.

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“There is an overriding public interest here around public safety,” said Mark Winfield, a York University associate professor who researches Canadian safety regulations. “These sorts of records should be pretty transparent, because it goes fundamentally to how the regulator does its job.”

“We think the public should be able to see this information,” said Pierre Arseneau, with Syndicat des Métallos, the union that represented MM&A employees, and which has been vocal in its criticism of the condition of the MM&A’s rails. “It’s a question of transparency.”

An unmanned train carrying highly explosive Bakken crude barrelled into Lac-Mégantic in the early morning hours of July 6, 2013, setting off a string of explosions that killed 47 and destroyed a swath of the lakefront downtown.

The inspection documents provided by Transport Canada show that in April 2013, MMA 5017 was inspected during stops at the Farnham and Sherbrooke yards.

In a letter to MM&A, the inspector said he found “non-compliances” and listed 10 locomotives, including 5017. But the description field, where problems would have been detailed, has been censored.

Edward Burkhardt, the former chairman of MM&A, told the Star in an email that he could not comment on allegations railway track and equipment was poorly maintained, “as this whole matter is in litigation.”

The inspection reports also show that six weeks before the disaster, a Transport Canada inspector raised concerns about the branch of the MM&A railway that runs through Lac-Mégantic, known as the Sherbrooke subdivision.

The inspector observed many sections of the track that needed to be protected by a slow order of 10 mph, and requested several MM&A internal reports, indicating the state of the rails was a “priority matter.”

In response, MM&A sent Transport Canada a report showing numerous places where it had implemented self-imposed speed limits of 10 miles per hour, due to track conditions.

Jacques Vandersleyen, a former train dispatcher who now lectures at the Université du Québec à Rimouski, said rail companies sometimes reduce the speed of a section of track if it is worn down — but only until the track repair crew can address the problem.

He expressed doubt that MM&A trains were well maintained; according to a Sûreté du Québec search warrant obtained by various Quebec media, MM&A’s railway-equipment inspection manager told the provincial police the company had cut its repair crew from 12 to three employees.

Vandersleyen was shown the inspection documents obtained by the Star, and while he noted the details of track conditions had been redacted, said it was evident the rail conditions were poor. He doubts Giles’ $10 million will go far.

“It’s just a drop into the Pacific Ocean,” he said in an email.

Giles did not respond to a request for comment Friday.

The inspections underscore complaints by employees of the former rail company, who had long been concerned a catastrophe could result from what they characterized as the poor state of equipment and rails.

In the wake of the disaster, employees interviewed by Quebec’s provincial police expressed concern about rundown equipment and damaged tracks, according to the police search warrant.

The warrant states that MM&A employees told investigators the company was using poorly maintained locomotives, and that instead of repairing worn train tracks, employees say in the warrant, the company just lowered the speed limit.

One employee told police the company performed minimal maintenance on locomotives, and said locomotive 5017 was in particularly poor condition.

Transport Canada has said there were no documents containing the “approval” of one-man crews, because MM&A had “informed Transport Canada of its intention to use one-man crews,” then demonstrated they could do it safely.

“It’s important to understand that this is not a permission-granting exercise,” wrote Transport Canada spokesperson Brooke Williams in a statement earlier this year.

Each company’s safety regime — containing practices, policies, employee training and more — is considered “third-party,” or private, and cannot be accessed through Transport Canada to be scrutinized.

“They’ve opened up the prospect where this private corporation can claim proprietary interest over the safety management process,” E. Wayne Benedict, a former rail employee turned labour lawyer, told the Star after the disaster.

Similarly, some details of the Transport Canada’s MM&A inspections are considered proprietary and not accessible through the regulator. In general, Transport Canada does not release information about defects found in rail equipment, because it is considered third-party information.

In one letter to MM&A in March 2012, railway safety inspector Robert Gaudet wrote to CEO Robert Grindrod about a “hazard or condition” identified at the rail company’s Sherbrooke yard.

The problem Gaudet identified, however, is censored from the letter, because it contains third-party information.

Later that year, Transport Canada sent MM&A a letter of safety concern following a track inspection of the Sherbrooke line, but that information, too, is redacted because it contains third-party information.

Large parts of the inspection documents were not available for viewing because the records were “prepared in the course of an investigation.” A Transport Canada employee said that, in the case of the inspections requested by the Star, that was sometimes but not always referring to ongoing investigations or litigation into the disaster.

Winfield said the regulator should have to provide more information about how the release of MM&A’s inspection reports would compromise an investigation.

“On the surface,” he said, “it’s a little hard to buy.”

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